England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE COLLINS: The Applicant, Mr Richard Mackelden, seeks judicial review of an Order of the Lewes and Crowborough Justices, whereby they committed him to prison for a term of 30 days in total on 3rd April 1997. The committal was for a non-payment of domestic and business community charges, amounting in all to £1,060.

2. The relevant history is as follows. The Liability Orders were a Non-domestic Rates Order in relation to some premises at Kiln Farm in High Hurstwood, where the Applicant carried on a business as a mechanic of some sort. That was a Liability Order imposed in August 1993. There was also a Council Tax Liability Order in respect of his home in Crowborough which was imposed on 3rd August 1995. That was in the sum of some £243.

3. On 4th October 1995 a summons for a Means Inquiry was issued which was adjourned until February 1996. In February 1996, the Applicant did not appear at court and a warrant was issued backed for bail. It was not executed for some time. By May the Applicant had paid a relatively small sum off what he owed. However, on 23rd May 1996 he appeared before the Justices. There was a full Means Inquiry carried out. The court decided that he had been guilty of culpable neglect and fixed a term of imprisonment which was suspended on condition that he paid off the arrears at £100 per month.

4. On 1st August 1996 the case was relisted at his request and the condition of suspension was varied to a payment of £50 a month. Nothing was paid.

5. On 8th January 1997, at the request of the Council, a notice was issued that on 6th February the court would "... hold a hearing to consider whether or not to issue a warrant committing you to prison unless you pay the outstanding sum, because of your default in payment". The balance then due was £1,060.41. The Applicant sent a written response on the relevant form, but did not attend court and, on 6th February, a warrant not backed for bail was issued. This led to the Applicant's appearance on 6th March, when the case was adjourned until 3rd April because, apparently, he had offered to sell some deep-sea fishing tackle, which was one of the few assets that he had which might have raised some money in order to pay the outstanding arrears.

6. On 3rd April he attended again at the Magistrates' Court and he was then seen by the Duty Solicitor, Mr Schavieren. This was the first time he had had any legal representation or advice in respect of these matters. Mr Schavieren took instructions from the Applicant as best he could. It was soon apparent to him that the Applicant was hopelessly insolvent. He had a considerable number of debts. His partner was working part-time, but there was a need to look after seven children ranging from 15 to 2 1/2 years. The Applicant had a number of County Court summonses and judgments against him. It was, as I say, quite apparent that there simply was no money available to pay anything off these arrears. Mr Schavieren, after seeking advice from the representative of the Charging Authority, reckoned that, if the Applicant were to petition to be made bankrupt, it would mean that this debt would not necessarily rank ahead of others and, indeed, would have to be proved in the bankruptcy. That being so, the committal Order would not be able to stand. So it was that he told the Justices of the situation. He has said, in an affidavit that he has lodged in these proceedings, that he asked for an adjournment, essentially, to consider the question of bankruptcy.

7. The Clerk, who was sitting that day, has produced a bundle of documents which is effectively the court file. He made a note in which he says this, reflecting Mr Schavieren's submissions:

8. The notes do not specifically refer to an application for an adjournment, but in an affidavit which has been sworn on behalf of the Justices, the Clerk does not dispute Mr Schavieren's affidavit, that he did indeed ask for an adjournment.

9. One of the complaints made is that the Justices retired, came back and made the committal Order, and that if they were minded to do that, they should have indicated that that was what they might do, so as to enable Mr Schavieren to make proper submissions as to why they should not, because his submissions hitherto had been aimed at seeking an adjournment.

10. It may be that there was some misunderstanding on the part of the Justices as to precisely what application was being made, but the fact is that there is no doubt that they were told of the Applicant's dire financial position, and that he was in a situation where he wanted to see the Official Receiver with a view to the possibility of bankruptcy. It must be recalled that the purpose of the provisions for committal are not to be punish the relevant defendant for a failure to pay. They are intended to be a means of trying to obtain payment if all else fails. That is why it is necessary that there had been a finding of wilful neglect to pay. That itself presupposes and must presuppose that there are some means available to pay which the Applicant, either deliberately or negligently, failed to draw on.

11. The Justices in May 1996 had quite clearly decided that there was such wilful neglect, and that is what led to them making the suspended committal Order. That has to be accepted as a proper Order and, in any event, it is far too late to do anything about it now.

12. However, when the question of enforcement arises, the Justices still have to be satisfied that the wilful neglect continues because they have to be satisfied that they are not using the committal to punish. Accordingly, they have at that stage to consider, as it seems to me, any material put before them which might persuade them that the reason why the suspended committal Order has not been complied with is that the Applicant simply has not been able to pay. It may be said here: 'The Justices were entitled to rely on the fact that nothing had been paid. Surely over the year or more since the original Order was made the Applicant must have found something or could have found something.' Again, that is not necessarily in point because the fact, if it be a fact, that he might have found something does not mean that he would have been able to find the £50 a month which was required. The explanation given by the Applicant is, one is bound to say, a slightly feeble one, that he did not appreciate that he could pay a part. He thought that the obligation was to pay the whole, and if he could not pay the whole, then he could not pay anything.

13. However, as I have said, the Justices had material before them which quite plainly indicated that that there was an inability rather than a lack of will to pay. In those circumstances, it seems to me that the Justices were wrong to make the Order that they did.

14. I note that in the affidavit sworn by the Clerk, at paragraph 7, he says this:

15. It will be clear from what I have said that, although I accept that this is an important consideration, it is not the only consideration. In my judgment, Justices do have an ongoing duty to satisfy themselves that any failure to comply was itself the result of wilful neglect rather than inability. They are not entitled to commit unless they do it as a means of enforcement rather than as punishment. Of course, the fact that there had been a committal Order imposed presupposes that the Justices did then find wilful neglect. No doubt, if there has been a failure to comply, it will in many cases be clear to the Justices that it is proper to enforce, but not always. This case is an example of one where the matter should have been contacted further. In those circumstances this Order cannot stand.

16. I should add one matter. At the outset of the hearing Mr Silvester, on behalf of the Applicant, told me that he had suddenly realised on re-reading the notes in the White Book to Ord. 53 that he ought, perhaps, to have served the Charging Authority. He submits that they are not persons directly affected within the meaning of Ord. 53, r.5(3) which reads:

17. That may well be right, but that paragraph of Ord. 53, r.5 is mandatory, that is say that there would be a breach of the rule if a person directly affected were not served. That does not mean that there are not obligations to serve others. Indeed, it is clear from Ord. 53, r.5(7), which reads:

18. That presupposes that there may be persons who ought to have been served notwithstanding that they do not fall directly within the wording of Ord. 53, r.5(3), so, here, as it seems to me, the Charging Authority ought to have been served.

19. Realising the error, Mr Silvester this morning faxed the Charging Authority and has received a fax back in which they say that they take the view that they ought to have been served, but they have no desire to attend. They really have had too short notice to expect them to attend, but they wished to reserve their position.

20. I decided to go ahead and not to adjourn the matter because it seemed to me that it was highly improbable that they would wish to attend and equally improbable that there was any material which they could usefully put before the court in addition to the material that was already before me. The error was that of the court and not of the Charging Authority. They did not in any way contribute to it nor was there anything that they said or omitted to say which was in the circumstances material.

21. However, recognising that they ought to have been served and that they are, at least indirectly, affected by the decision, it seemed to me that it would be right to leave the matter open to this extent, that they would have the right to come to court if they wished and to raise matters which might or would in their submission have altered the court's view. I cannot envisage any circumstances in which they would think it right to do that. Of course, they would be at risk as to costs if they came and failed. As I say, it seems to me right that they should have that opportunity.

22. What I, therefore, propose to do is to let the Order that I propose to make (and I will in due course seek Mr Silvester's help on the exact terms of that Order) lie in the office for a period of time and not become final until the Charging Authority has had an opportunity of deciding whether, in truth, they do wish to make any representations.

23. Obviously, a note of my judgment will be provided to them. I see that Mr Silvester and Mr Jemran (?) are both making notes and so will be able to inform of at least the gist of that judgment.

24. For those reasons, I propose to quash the decision of the Justices to enforce the committal Order.

25. Mr Silvester, what would you submit I should do otherwise? The problem is we are a year now on.

26. MR SILVESTER: My Lord, I was going to suggest that the decision merely be quashed and the committal warrant obviously set aside.

27. MR JUSTICE COLLINS: I think that is right, because the debt is still there. It must now be a matter for the Charging Authority initially, and for the Justices as well, to decide what should be done. Although it is a year on, I see no reason why the matter should not be pursued or not pursued depending on the circumstances.

28. MR SILVESTER: I would have asked for all sorts of Orders, mandamus etc, but I think the point that your Lordship makes is quite clear.

29. MR JUSTICE COLLINS: I think the only Order I need make is certiorari to quash the Order of the Justices. The matter can be pursued from there.

30. MR SILVESTER: My Lord, presumably no Order for costs and legal aid taxation. The Justices not having appeared ----

31. MR JUSTICE COLLINS: Normally one does not order costs against the Justices. It will just be legal aid taxation.

32. So far as the "lying in the office", as it were, is concerned, we have to deal with that. The surrender to bail does not arise because the Order having been quashed, the committal Order has gone, so the Applicant is relieved of any obligations in relation to bail. I am inclined to say 14 days. I think that is long enough to enable the Council to make up their minds.

33. I think I had better say three weeks because you are going to notify them and/or your solicitor. Would you be good enough to notify them of what has happened and, indeed, what I have ordered, giving them that opportunity. Obviously, they must notify the court (and I would ask them to do it as soon as possible) if they have any desire to make any representations.

34. MR SILVESTER: I shall speak to Mr Parsons, who was very helpful. I spoke to him this morning. This afternoon I will communicate your Lordship's judgment. They have responded very quickly at very short notice.

35. MR JUSTICE COLLINS: If you are in the position after you have spoken to Mr Parsons to confirm that they do not wish to respond, then you can simply tell the Crown Office and the Order can be issued in the normal way.

36. Perhaps, I can go back to 14 days. That should be long enough or a maximum of 14 days unless before that, the court is notified that they to do wish to attend in which case they can.

37. MR JUSTICE COLLINS: It is probably actually easier to say 14 days without any if and buts. There is no harm if the matter is delayed for 14 days. It will take that sort of time to get him back before the Magistrates anyway.

38. MR SILVESTER: My Lord, yes. I shall notify them today and they can have a copy of the notes of the judgment by tomorrow.